Plumbing Co. v. Powell

Opinion by William W. Porter, J., The question raised by the first assignment of error is the only one requiring notice at our hands. As the appellant says, it practically includes all of the other assignments of error. It is, whether the provisions of the contract respecting the filing of mechanics’ liens is operative to prevent the filing of liens. The language used is as follows: “ It is further agreed that the party of the first part will not at any time permit any lien, attachment or any other incumbrance, under any law of this .state, or otherwise, to be put or remain upon the building or [429] premises, about or upon which any work is done, or materials are furnished under this contract for such work, materials, or by reason of any other claim or demand against the party of the second part.” The striking similarity between this clause and that in the contract involved in the case of Gordon v. Norton, 186 Pa. 168, leads us to put the two in close comparison by quotation. After stipulating that he will file no lien himself, the contractor there agrees that he will “ not suffer or permit any lien, attachment or other incumbrance, under any laws of this state, or otherwise, by any person or persons whatsoever, to be put or remain upon the said sixty-five buildings, or upon any of them, for any work or labor done or material furnished under or in pursuance to this contract, or by reason of any other claim or demand against him,’’etc. Of this clause Mr. Justice Mitchell says: “ This is not such a covenant as will prevent the filing of liens under the rule ascertained and intended to be finally settled in Nice v. Walker, 153 Pa. 123; and almost identical language has been so determined in Creswell Iron Works v. O’Brien, 156 Pa. 172; and Lucas v. O’Brien, 159 Pa. 535.” It is impossible to escape from the application of the opinion quoted to the case before us, or to successfully attack the soundness of the judgment. It is an authority determining this cause against the appellant, and sustaining the action of the court below, founded upon the report of the referee. Under these circumstances, it seems unnecessary to go further afield among the many decided cases to be found in our reports on the general subject, or to enter upon a discussion of the principles upon which they have been decided. The judgment of the court below is affirmed.